Does a Delaware town's executive session agenda have to specify the exact topic, like naming a police department, or can it just cite the legal exemption?

Official title

18-IB09 2/12/2018 FOIA Opinion Letter to Mr. Craig O'Donnell and Ms. Shannon Marvel re: FOIA Complaint Concerning the Town of Dewey Beach

Plain-English summary

Dover Post reporters Craig O'Donnell and Shannon Marvel challenged the agendas for Dewey Beach's February 2 and February 9, 2018 meetings, which noticed executive sessions using language like "discussion of Town personnel matters regarding terms and conditions of employment contracts" and a citation to the FOIA provision covering documents excluded from the public-record definition. The reporters had reason to suspect the sessions might involve the Police Department's participation in a federal program, based on public statements from the Mayor, but said the vague agenda wording left them unable to confirm whether either meeting actually concerned the police department; they could only determine, through follow-up emails, that the February 2 session concerned a town manager search, while February 9's topic remained unknown to them.

The AG rejected the argument that an agenda "merely quot[ing] statutory exceptions" is legally deficient. Citing the Delaware Court of Chancery's holding that language like "Personnel & Legal Issues" satisfies FOIA's notice requirement, without a public body needing to elaborate on the specific subjects to be discussed, the AG found Dewey Beach's agendas met that same minimum bar. The opinion did flag, referencing a separate line of cases, that a public body cannot use a generic catch-all listing of every possible executive-session ground just to obscure its real reason, but found no evidence the Town had done that here, since its February 9 agenda's use of multiple specific bases did not look like an attempt to disguise the topic.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Does a Delaware public body's executive session agenda have to describe exactly what will be discussed?

No, according to this opinion. Reaffirming Delaware Court of Chancery precedent, the AG found that citing the general statutory basis for the session, like "personnel matters" or "documents excluded from the definition of public record," satisfies FOIA's notice requirement, even if that phrasing doesn't tell the public which specific personnel matter or document is at issue.

If I can't tell from a meeting agenda whether it covers a topic I care about, is that a FOIA violation?

Not by itself, based on this opinion. The reporters here could not determine whether the sessions concerned the police department from the agenda language alone, but the AG found the agendas still legally sufficient because they properly cited a permissible FOIA ground for the closed session.

Can a public body list multiple different reasons for one executive session without it looking like a catch-all designed to hide the real topic?

Yes, according to this opinion, at least where the record doesn't suggest the multiple listed bases were used as a generic catch-all. The AG distinguished a legitimate multi-ground agenda from the kind of vague, sweeping listing of every possible statutory ground that Delaware courts have previously warned against.

What language has Delaware case law already approved for executive session notices?

This opinion cited prior case law approving language such as "Executive Session (Personnel & Legal Issues)" as sufficient, reinforcing that brief, general statutory references, rather than detailed descriptions, meet FOIA's minimum notice standard.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, permits a public body to convene an executive session for personnel matters concerning the terms and conditions of individual employment. 29 Del. C. § 10004(b)(9). Delaware courts have held that an agenda satisfies FOIA's notice requirement by stating the general statutory basis for a closed session without detailing the specific subjects to be discussed, following O'Neill v. Town of Middletown. At the same time, courts have cautioned that a public body may not use a generic, sweeping listing of every potential executive-session ground as a catch-all, per Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd. This opinion applied the first line of cases to uphold Dewey Beach's agendas and found no evidence triggering the second line's catch-all concern.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10005(e) (petition procedure for AG determination)
• 29 Del. C. § 10004(b)(9) (executive session for personnel matters)
• O'Neill v. Town of Middletown, 2007 WL 2752981 (Del. Ch. Mar. 29, 2007) (general statutory reference satisfies agenda notice requirement)
• Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994) (agenda may not use a generic catch-all listing of executive-session grounds)

Source

• Landing page: https://attorneygeneral.delaware.gov/2018/02/13/18-ib09-2-12-2018-foia-opinion-letter-mr-craig-odonnell-ms-shannon-marvel-re-foia-complaint-concerning-town-dewey-beach/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2018/02/Attorney-General-Opinion-No.-18-IB09.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 18-IB09

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 18-IB09

February 12, 2018

VIA U.S. MAIL AND EMAIL

Craig O'Donnell

Shannon Marvel

Dover Post

[email protected]

[email protected]

RE: FOIA Correspondence Regarding the Town of Dewey Beach

Dear Mr. O'Donnell and Ms. Marvel:

We write regarding your correspondence alleging that the Town of Dewey Beach ("Town") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). We treat your correspondence as a petition for a determination pursuant to 29 Del. C. § 10005(e) regarding whether a violation of FOIA has occurred or is about to occur ("Petition"). As set forth more fully below, it is our determination that the Town did not violate FOIA as alleged.

In your Petition, you allege that the Town violated FOIA by failing to provide sufficient detail in its agendas for its February 2, 2018 and February 9, 2018 executive sessions. By way of background, the agenda for the February 2, 2018 meeting noticed an executive session "[p]ursuant to 29 Del. C. §10004(b)(9) discussion of Town personnel matters regarding terms and conditions of employment contracts." The agenda for the February 9, 2018 meeting noticed an executive session as follows:

Pursuant to 29 Del. C. §10004(b)(9) discussion of Town personnel matters regarding terms and conditions of employment contracts.

Pursuant to 29 Del. C. §10004(6) Executive Session to discuss the content of documents excluded from definition of public record where such discussion may disclose the content of such document.

Pursuant to 29 Del. C. §10004(b)(9) personnel matters in which the names competencies and abilities of individual employees are discussed.

To support your argument, you reference a public statement that the Mayor had made regarding meeting about the Dewey Beach Police Department's participation in a federal program and email correspondence wherein the Mayor stated that the discussion would occur in executive session.[1] You state that, because of the lack of additional specificity in the agendas, "[t]he Dover Post was unable to determine whether the meeting of Feb. 2 or Feb. 9 concerned the police department."[2] You state that you were able to determine through an exchange of emails that the February 2, 2018 meeting concerned the town manager search, but that "[t]he actual topic(s) of the Feb. 9 meeting are unknown . . . ."[3] Due to your difficulty in determining the exact nature of the executive session discussions, you allege that the "agendas are defective and do not comply with FOIA."[4] Specifically, you allege: "Based on the statutory language itself, an agenda that merely quotes statutory exceptions claimed for an executive session is not, in fact, a legal agenda . . . ."[5] We disagree.

As we have previously noted, "[t]he Delaware Court of Chancery has specifically held that a public body's use of the language 'Personnel & Legal Issues' satisfies FOIA's notice requirements" with respect to executive session.[6] The Court stated:

Although more precise reasons could have been offered by the Council and the Planning Commission, the reasons they did articulate on the agendas satisfy the FOIA. The statute requires public bodies to provide the reason for entering into an executive session, but that does not require public bodies to elaborate in great detail on the agendas what legal, personnel, or other subjects are to be discussed. Therefore, the Court concludes that there is no triable issue of fact regarding the sufficiency of the state reasons for the executive sessions.[7]

The Court of Chancery has already concluded that simply specifying "personnel and legal" satisfies FOIA's minimum notice requirements. Here, we find that the Town's agendas at issue meet the minimum notice requirements of the statute.[8] Accordingly, it is our determination that the Town did not violate FOIA.

Very truly yours,

Michelle E. Whalen

Deputy Attorney General

APPROVED BY:

Allison E. Reardon

State Solicitor

cc:

Fred A. Townsend, III, Esq. (via email)

[1] Petition at 2.

[2] Id. at 4.

[3] Id.

[4] Petition at 4.

[5] Id. at 5.

[6] See Del. Op. Att'y Gen. 17-IB31, 2017 WL 3426271, at 2 (July 24, 2017) (citing O'Neill v. Town of Middletown, 2007 WL 2752981, at 7 (Del. Ch. Mar. 29, 2007)); see also Del. Op. Att'y Gen. 05-IB26, 2005 WL 3991284, at *7 (concluding that public body's use of the language "Executive Session (Personnel & Legal Issues)" did not violate FOIA's notice requirements).

[7] O'Neill v. Town of Middletown, 2007 WL 2752981, at *7 (internal citation omitted).

[8] Of course, the Court has cautioned that a "general listing of several of the potential grounds for an executive session provided for in § 10004(b)" is impermissible. See id. (citing Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295, at *10 (Del. Ch. May 19, 1994)). However, we see no evidence here to suggest that the Town's use of multiple bases for executive session for its February 9, 2018 meeting was used in such a catchall manner.